tv Supreme Court Landmark Case Schenck v. United States CSPAN August 6, 2017 12:00am-1:32am EDT
be talking about civic education and constitutional history. enormous quality. thank you for being with us. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2017] >> you are watching american history tv, all we can and every weekend on c-span3. like us on facebook at c-span history. >> all persons having business before the honorable supreme court the united states give their attention. landmark cases, c-span special history series produced in cooperation with the national constitution center. exploring the human story and constitutional dramas behind 12 historic supreme court decisions.
>> number 759, ernest, petitioner versus arizona. against wade. >> the decisions that the court took that were quite unpopular. >> let's go through a few cases that illustrate very dramatically, and visually what it means to live in a society of 310 million different people who helped stick together because they believed in the rule of law. >> good evening, welcome to c-span and the national constitution center's landmark cases. exploring 12 historic supreme court decision. tonight's case is schenck versus the united states. it is a case from 1919, involving freedom of speech around world war i. it also gave rise to supreme court's most quoted phrases,
shouting fire in a theater and clear and present danger. our two guests are with us to tell us about this interesting case, to take calls and questions. beverly is a history professor at yale university specializing in 20th century american history. he is the author of the day wall -- up -- of exploring america. welcome to our program. tom is a supreme court attorney who argued many cases but -- before the court. i want to start with you, tell our audience what is really at the heart of the schenck case. schenck is important because it was the first of taking the freedom of speech seriously. the constitution has been around for a long time. for a century, the bill of rights and the first amendment to not have a lot of affect in americans lives. schenck was a test as to whether you could say things that were hostile to the government and
might be constitutionally protected. he does not get much protection in the end, but it is the beginning of free speech. host: we always talk about famous names. oliver wendell holmes, what makes him famous? give us a biography of him. not a veryhenck is famous person, but wendell holmes is one of the towering figures, prudent of american letters by the time the schenck case comes around. he is the grand old man of the supreme court, so he is a 19th-century guy. he was in the civil war and he has been in the supreme court for a long time. one of the remarkable things that happened in 1919, he was around for a long time and is still changing his mind and coming up with new ideas. much mr. schenck is so
lost to history that we cannot find a photograph. we have to imagine what you look like in 1919. it all centers around the espionage act, which was passed in 1917. what did the espionage act do? thomas: the espionage act was a response to real concerns, the beginning of the red scare, at the beginning of world war i. there was going to be a real disruption in the united ability to mobilize the military. the espionage act is augmented by the -- act, which made it illegal to do things that might interfere with mobilization of troops. that is the statute under which he was charged and prosecuted. if you are looking for a picture of him, it might have been his mug shot because he got convicted. host: people might really be surprised to know that the law is 100 years old and is in force ced today.ed -- enfore
there are famous names in history and famous contemporary names who have been prosecuted under the law. some of those include eugene, who was prosecuted shortly after mr. schenck was. julius and ethel rosenberg, a famous case from 1950, then more modern cases. daniel was a protester of the the and him more. more recently, bradley manning, nell chelsea manning -- now chelsea manning. thomas: >> the supreme court has changed its mind about the espionage act. we can talk about that. congress has updated it some commentary it back some. the core of it, people would be surprised to know that there are still laws on the books that deal forcefully with the question of interfering with the during -- during
the time of four. host: we will set the stage during the period of when this arrived. we will show people of protests and pictures of america at the dawn of the new century as the country made its decision about whether or not it would be involved in the european war. let's watch. ♪ >> [singing] i brought him up to be my pride and joy. the mustard on his shoulder the mother's darling boy it's time to lay the sword and gone away there will be no war today as mothers all would say i did not raise my boy to be a soldier ♪
host: woodrow wilson was president and was being courted strongly by our allies to help in war in europe. how contentious was this decision for him at home? beverly: world war i was the most contentious war, in terms of the amount of debate that went into the decision about whether or not the united states would be involved in the war. the war started in europe in the summer of 1914. certainly by 1915, it is a real bloodbath. in some basic sense, many americans look over and say, we do not want to be involved in that. millions of people are killed in the first world war. many americans simply do not want to be involved, but there number of other
things in play. so the immigrant population in the united states -- many irish and germans, and non-naturalized residents do not want to be involved because they don't want to fight against germany or on behalf of england. a lot of radicals in the united states are saying this is a capitalist war or a war for empire. they do not want to be involved. many women, you saw female protesters, they are saying there has to be better ways. there is a very powerful women's pacifist movement in the united states. you have all of these different constituencies none of will want , to be involved in the war. woodrow wilson runs for president in 1916, for his second term, he was saying i am keeping you out of war. he kept us out of war, it is one of the reasons he is reelected. then, in 1917, that decision is reversed. it is also time that women were involved in antiwar protests and
do not have the right to vote. host: there was a lot of political organizing going on. isn't that correct? beverly: one of the things that a lot of people are measuring as the united states is debating whether or not to get involved in this war, is what it will mean for various causes. some women think that if we enter the war, we support the war effort, we show we can support our soldiers, that will be a good case for suffrage. other women say, the war will be a bloodbath. if we do this it will empower the most reactionary forces in the united states, therefore, all of these progressive reforms , including suffrage, are going to fall by the wayside. as it turns out, some things succeed, some things fail. there is a long debate. two in a half years of debate before the united states is actually in the war. host: we want to invite you to be part of this conversation. you can use twitter, you can see
tweet us at c-span and use the #landmark cases. you can join us on c-span's facebook page. i will tell you how to dial into our program later on. on facebook, mike asked in this appear in the era of the leftists campaign? beverly: there are contexts there that i think are important. this is the tail end of the progressive era. maybe in some ways, the height of the progressive era. you have a lot of political from and in the united states. it is the peak of socialists organizing in the united states. in 1912, eugene ran for president. he got 6% of the vote. he has a lot of radical groups, some of which are very reform minded, and some of which are more revolution minded.
there are also several bombings during this period in the united states. sometimes aimed at the government, sometimes at major capitalist. one of the most famous ones related to the first world war was the preparedness bombing in san francisco, in the summer of 1916. a bomb went off on a mobilization parade for the war and a labor radical named tom moody ended up being convicted. it was a very controversial trial. host: tom gave us a stretch of the espionage act, but what was the context in which congress felt it had to pass the act. beverly: in some ways, all of this debate and controversy about the war meant that when the united states decided to enter the war in april 1917, one of the big questions was, would the american people actually participate in this? the government is pretty small at this point. there is not a large standing
military. you have had some mobilization in 1915 and 1916. you have a big administrative question, how are we going to raise an army and how are we going to convince people to participate? then you have the more repressive side of that, which is, how are we going to silence the voices that have been so powerful already in protesting the war? a lot of people come on board at the moment that the war begins. there are a lot of progressive reformers that had been saying, this does not seem like a good idea. once a war is declared, they get on board. they silence themselves, but radical groups and socialist parties, the industrial workers of the world, members of anarchist organizations continue to protest the war. the question is, how will we
control that? the espionage act is one of the first attempts. host: did it have real teeth? beverly: it did have real teeth. in some ways, the espionage act, which is passed pretty quickly after the united states enters the war, it is somewhat a limited loss. it is aimed at people who are trying to disrupt mobilization for the war. in particular, who are trying to disrupt the draft. 1917 brings the first major federal draft in american history. you had a draft during the civil war, but this is national mobilization. a draft is hugely controversial. congress debates it for quite a long time. there is concern of how are we going to get these millions of young men to actually show up, to actually register, and can we do this? a lot of people are saying that we need to get control of the situation. thomas: wilson wanted to go further.
there were provisions of the bill that would affect the press directly. it gives you an example of how much they really did want to clamp down on this. i think the germans were gambling that we would not be able to mobilize. there was a real concern with the country and the administration that socialist organizations would be tied to non-allies in europe, and would undermine the mobilization in the military. there was a real sense that it could affect us losing the war. host: here is a comment on facebook that writes, a draft is military service is the same as involuntary servitude. does free speech matter if your government can force you to serve? if the war was worth fighting for the people would volunteer. i am far from socialists, but schenck was right about that and he should've been able to say so. thomas: that was the argument. it gives us a nice lead in to show exactly what happened. schenck was a leader of the socialist party in pennsylvania.
he sat down with the parties 15,000 leaflets that were subject to the draft. he said this as involuntary servitude, you ought to say no. beverly: one of the things people were encouraged to do was to watch their neighbors, to spy on their neighbors and report to authorities if they were in fact trying to subjugate the draft. 2000 people were prosecuted under the law, and 900 went to prison. host: i was thinking, where are the parallels in contrast to post 9/11 america? thomas: i think you saw a lot in the courts that are direct parallels. when this issue first got to the supreme court in 1919, the justices are very sympathetic and supportive of the administration.
as the war goes on, and they see the scope of these prosecutions, they become more and more reticence about it. this same thing happened in the courts in the post-9/11 war. as the bush administration tickets cases to the u.s. supreme court, it won. as the war on terrorism lasted longer, the administration started to lose. the judiciary gets the sense that this state of war will never end. while it is willing to limit -- willing to limit civil liberties, it has to come to an end. host: we will travel to the woodrow wilson house here in washington dc to learn more about the president's efforts to encourage people to support the war effort. while charless -- schenck and the socialist party of the united states were trying to encourage people to resist conscription, president wilson and his administration, including the committee on public information were working to support the war effort.
the committee on public information developed over 1500 different designs for posters and other informational materials that were intended to be widespread throughout the public spaces. one of the posters is this spectacular work. it is called "americans all." it captures an important aspect of the united states in this era. we think of ourselves as a nation of immigrants, but that was never more true than in the 1910s. that was the era in which a third of the americans were born in another country, or their children of someone who was born in another country. this poster shows that concern. it lists here the honor roll of those buying liberty bonds. you could see the names that are used are those of different ethnic backgrounds, making the point that americans from all around the world -- people who
have immigrated from all around our americans joined together in the war effort. the largest immigrant group in america, in this era, were german immigrants and their descendents. let me show another poster from our collection from this era that is a bit more intense. i think it helps set the scene for the context in which charles schenck was undertaking to resist conscription. the hon is a derogatory term used for germans, who were one of our enemies. here you have a really shaking -- i would say, horrifying image of a german soldier. you recognize the german imperial army helmet, and literally blood on the blade and fingers of the soldier as he approaches. host: what else would you like us to know about this period? beverly: one thing you could see from looking at those posters
are some of the anxieties that are present at this time. how are we going to get all of these people from all of these different places to act in a single way, as americans, despite this deeply unpopular war? that is the great question of the age. it is a important moment for the history of propaganda. this is one of the first moments that the federal government explicitly enters into a modern propaganda effort. i think the other thing that is really important to note, while we will talk a lot about the espionage act -- this goes a little bit to what you were saying about the post-9/11 world, the espionage act is this dramatic example of something that is happening on a much more widespread basis. you have these very particular prosecutions under this particular act, but there are all sorts of repressive campaigns, sometimes aimed at german-americans.
a lot of people do not know that germans were interned in the united states during the first world war. about 6000 german men were taken and put into military camps during the first world war. you have a lot of citizen and vigilante attacks on germans, sometimes on political radicals. you had a series of other laws like sabotage laws, new immigration laws that are also aimed at this containing of opinion. you have all of these things going on. sometimes these are violent episodes. the espionage act in those prosecutions are a very dramatic example. what is great is that you end up with people sitting down and talking about these issues. there is a lot of other turmoil. host: i am hearing parallels to the post-9/11 world. thomas: that is right. it was a really expansive
cultural moment. the country was enormously focused on the war. i do think it is valuable to realize how different it was. a lot of things that we look at today that we take for granted, in a sense of what our civil liberties are. the things we can say, the things we expect our government will or won't do. it was an entirely different country at that time. world war i, the great war was incredibly decisive in shaping the country and shaping americans attitudes. the government got away with a lot of things that it would never now. beverly: two institutions that i think represent some of this continuity between that moment and our own, it has been the world war i period when you get the -- what we know is the fbi beginning to conduct political surveillance. then you get the aclu coming out of this moment. those two institutions are still , in some ways really shaping
our debates around these issues. host: you are a philadelphian and charles schenck was the head of the socialist party in philadelphia. was it a hotbed of socialism? beverly: i'm not sure if philadelphia was. socialism can be concentrated in a couple of places. one was east coast cities. there was a presence in the midwest as well. eugene, who was the figurehead of socialism in this moment, and by far, the most famous national figure in the socialist party. he was from the midwest. there was a lot of socialist in cities like philadelphia and new york. many of them were immigrants. host: we will travel to philadelphia in a minute, but before we do that -- by camera, of course. we will to you how to be involved by phone on the program.
we will divide the lines geographically. eastern time zones. 202-748-8900. if you live in the mountains are pacific towns -- time zones. 202-748-8901. be involved by twitter, facebook or by phone. in philadelphia, the socialist party met. after voting authorized charles schenck, there were 15,000 pamphlets where they were protesting the idea of the draft. let's watch. >> this is the flyer that was produced by charles schenck in 1917. 15,000 copies were produced to encourage men not to register. the language is fiery. it equates with slavery and calls on every citizen of the united states to resist conscription laws.
assert your rights. here he cites several sections of the constitution, then he says, here in the city of philadelphia we signed the declaration of independence. as a citizen of the credo of american liberty you are doubly charged with the duty of upholding the rights of the people. he ends this page with are you with the forces of light or war and darkness? it continues on the other side. long live the constitution of the united states. wake up america, your liberties are in danger. at the bottom he writes, exercise your rights of free speech, peaceful assemblage, and petitioning the government for grievances. come to the headquarters of the socialist party and sign a petition to congress for the repeal of the conscription act. help us wipe out the stain upon the constitution. host: as i read that language, he does not say ovoid the draft, he suggests people use a lawful process to sign a petition for
repeal of the draft. what was evil eagle -- illegal about it? thomas: it was intended to undermine the draft. while, in modern times we think, gosh, just expressing your opinions about why the draft is bad, it is something that the government can prosecute you for. it was a huge deal. part of the problem was the government was afraid of general attempts to undermine conscription, which was really essential. we had a relatively small army, we really had to get young men into the army and overseas. this was at the heart of the war effort. host: how powerful would an argument like this have been for people who were considering, or of draft age? beverly: it is pretty powerful. a funny thing that happened was that the socialist party was one of the few institutions that is
still opposing the war. this is hugely successful for them. on the one hand, a lot of socialists end up in jail. on the other hand, they attract a lot of new members as a result of the war, and to some degree, the bolshevik revolution. when that happens later on in 1917. many people who did not become socialists also avoided to draft. if you do not register you could try to hide out. by 1918 the country -- the federal agency is engaging in flacker raids. if you are not registered you are considered a flacker. the federal government rounded people up relatively indiscriminately to see who was actually registering, and who was not. host: if there were a number of people who was prosecuted under this law, how did charles schenck make his way to the
court system? what happened? thomas: schenck challenge the -- challenged the constitutionality of the espionage act. at the time it was an unusual thing because the first amendment does not have a lot of pieces at this point. so he goes to trial, he is it. host: what court? thomas: in federal court, i think in pennsylvania. he then is -- because he challenges the constitutionality of the law, at that time, unlike now, he could take his crazed -- case straight to the supreme court. it's set up this major challenge to a centerpiece of what the administration thought of the war effort. it was extremely controversial at the time. it was not the first to get to the supreme court, but they dismissed the very first case in the hope that they could unanimously deal with the next one. schenck's is the first one they could decide on his death on the
constitutionality under the espionage act. host: today, the supreme court might get petitions from hundreds or thousands of cases. they go through a process of searches, 75 or so are going to hear. how different was the process back then? thomas: there was a very different number of times. -- times someone could appeal to the supreme court. you say 99 times out of 100 they get to decide their own cases. it takes them some 7000 petitions. the judiciary was smaller and the number of cases was smiling. the supreme court was required to hear a case that was much higher. in the latter part of the century the justices got good at convincing congress that they should have the ability to choose, rather than having these cases hoisted upon them. it was much easier in a major constitutionality like this to make it way into the supreme court. host: we will more about the court itself and the case itself. by the time it got to the court, it was 1919.
where worry in the war by that point? beverly: the war was over. one of the surprising things for many americans, april 1917. we entered the war by june of 1917. the draft is up and running, but the united states is not actually engaged in a significant way in the war as a military enterprise until a middle of 1918, then it is over. you have all this energy, all of this mass mobilization, all of these new laws, then boom, they are done. a lot of those cases linger on into 1919 and 1920. one of the questions is, how do we think about ourselves? do we think about ourselves as a country at peace? to be still pick about ourselves as a country at war? treaties have not been signed and we are not engaged in active military combat. just a little bit in russia, 1919. host: time to welcome some of our callers into the discussion.
what is your question? >> my question is, first of all, i am a first amendment absolutist so i think everyone should be able to say whatever as they ares long not yelling fire in a crowded theater as a joke. i kind of disagree with what one of your other viewers tweeted in about the draft being forced -- slavery or something like that. theoretically, at least we were living under a rule of law of republic. everything was being done, theoretically at least, the world of the people, at least majority of the people were behind. i was wondering, at the time, was there any kind of movement similar to what happened during
the vietnam war with people going to canada? that kind of stuff. i know one of your guests alluded to people hiding out. was there any kind of movement to actually read if people do not want to go along with this? certainly, no one was being forced to stay here, they could go somewhere else. beverly: there was. it does not go on as long as vietnam. there was not as much time for people to uproot their lives, but a lot of political radicals went to mexico. anarchists in particular. there is a story the federal government was interested in this and what the radicals were doing and mexico. there was one group that was planning protests in the united states that emerged in 1918 and
early 1919 were draft resisters who were hiding out in mexico. is add in danbury, connecticut. >> it seems to me that the schenck argument was guilt by association. falsely crying fire in a crowded theater and clear and present danger are great slogans, but they do not apply to what schenck did or said. in any opinion, he seemed to ignore the first amendment, which is pretty clear in terms of restrictions of no restrictions on free speech. how can the supreme court ignore the constitution of this case, also in the sedition act? thomas: it is really useful to put together a few different threads of the first amendment from the last two callers. one is the discussion of the first amendment being absolutist. the first amendment says there
-- that congress shall pass no laws. but what holmes says and what the supreme court has said is that it depends on the context. that is where this notion of crying fire in a crowded theater comes from. that is where everyone would agree, and one of the caller stated. certainly, we can prevent someone from being able to do that. from there, from the idea that context matters and that the first amendment is an absolute, the supreme court says, here are the circumstances that the government can prevent you from doing something that interferes here, or insights crime, that standard has varied from the justices over time. schenck is a very first time that they announce a rule and there is a clear and present danger. it does not mean that there has to be a problem right now or an immediate risk. the focus of clear in present danger means that there is danger. they thought it would undermine
conscription. host: we will have more opportunity to talk about that as a program progressives. you are watching c-span's landmark cases. we are talking about the 1919 decision in the schenck versus united states freedom of speech case. ian is up next in jefferson city, tennessee. you are on. >> i would like to basically address -- i guess i have an issue here. it seems to me that within any kind of real democracy, the idea would be that -- in terms of promoting public policy, the great idea would be the thing that won out. those ideas have to be able to get in. this is the time of schenck where there is a great fountain of ideas that are ready to be aired, yet the government seems to want to close this off. it is a great travesty. one of your speakers said that we had to get the troops out and we had to get them rallied, which effectively, at least in this case, means the government
had to shut down the tool of one side to be able to give their idea out or rally troops. that is just a comment. my question would be to mr. goldberg were he said this open ed the door for george addressing the idea of freedom of speech more actively. i am wondering if there was an active current in the court to get that rectified? i know there is a big backlash build time, does that steam along the way? thomas: you would think with the birth of the first amendment in 1919 that there was a series of cases, the supreme court took the first amendment seriously. started doing things like striking down the espionage act,
but it would not be the case. this is the starting gun of the first amendment. it takes a long time for the first amendment and the right of free speech to build a moment to -- a lot of momentum. a couple of decades later the supreme court does strike down one law, but they do not get around to reversing the legal standard from schenck until the 1960's. it really picks up momentum with vietnam. it was another war and all of those protests that cause the supreme court to revisit this question of when you can be critical of the government? when can we have the marketplace of ideas? it is then that the supreme court takes the idea of freedom of speech. we are talking about half a century later. host: we have a caller describing the early teens and 20th century as a time of great ideas. and the government trying to dispel those. beverly: i think that is a fair characterization. world war i, then 1919 and 1921
is known as the first red scare. they really are a period of deep reaction against the left. earlier you had had socialist groups, anarchist groups, radical labor groups, mainstream groups, progressive organizations who had been gaining a lot of ground in the united states. a lot of those groups move out from the 1917's to 1920 period. it destroys a lot of those organizations. a lot of radicals are deported. i think it does limit the range of debate in the united states in the 1920's. thomas: that was the point. it was pretty transparent. they thought this type of advocacy would hurt the war efforts so they wanted to stop it. host: you are up next, malcolm. >> i am very disturbed about what happened with those 47 legislators who sent a letter to
iran, we had our president negotiating a deal with them. what act does that fall under? a sitting president negotiating with an enemy that causes terrorism, then legislators send a letter to them telling them not to trust our president. that sounds like treason or some type of act against our national security. there should be hearings on that, or they should be censored in some way, or prosecuted even. what do you think? thomas: there are several laws people think about in that context. there is the espionage act. there is another statute that prevents anybody from engaging in foreign policy. the truth of the matter is, congressional legislators, when they are doing their job they have unbelievably sweeping immunity. the constitution and laws really say that we are not going to allow members of the house and senators to be prosecuted for what they are doing during their job.
if they are afraid of being prosecuted, then they will be inhibited and will not represent the people. while there is a lot of talk and concern, and this issue has arisen in the past, if you are a congressperson or senator, you can do almost anything you want when it comes to advocacy of a policy. beverly: i was going to point out that this is in a slightly different matter, something that woodrow wilson ran into. he campaigned his heart out when the war came to an end, for the treaty of versailles. and for the united states to enter the league of nations and ultimately, congress did not see eye to eye with the president. the republican congress did not see eye to eye with a democratic president and they rejected his initiative. that is how the war came to an end for the united states. host: let's bring the discussion back to the supreme court. chief justice was edward white. i will read the names of the
other justices who served, in addition to the one that we talked about earlier, oliver. joseph mckenna, william, lewis, maylon, james, lewis, and john clark. the only other name that rings a bell is lewis brandeis. why do we not know more about the chief justice at the time? talk about that court. thomas: that court really does decide a number of very important transitional questions in american law. we are still in the era that you discussed in one of the earlier programs. the supreme court is recognizing a set of rights, for example, the liberty of contract. it is becoming more assertive. being more willing to strike down laws that congress has enacted. in terms of personalities of the justices, and who is really famous in history, it really is holmes and brandeis.
other members of court do not really shine out. in part, it is because they have this incredibly evocative way of shouting fire in a crowded theater. clear and present danger, the phrases we have mentioned from schenck are ones that ring through history. that is part of the reason we remember holmes, in addition to his individual contributions. host: we will learn more about holmes and how it may have affected his -- his bots that it brought to this space. let's watch. >> the civil war affected homes, with an understanding that the nation could be at peril. you had to strain every part of the national fabric to preserve the country. in a very short time after he joined the 20th regiment as the first lieutenant, he was engaged in a battle.
as he says in his diary entry here, he was shot from the side, the bullet went through the fleshy part of his chest, directly across his chest and exited out the other side. the bullet ended up in his clothing and the surgeon gave it to him afterwards. his next significant civil war activity was a bottle of antietam when he and his regiment, and a couple of other regiments were suddenly surrounded by confederate troops led by stonewall jackson. holmes was shot in the fleshy part of the shoulder and the neck. the bullet again missed any vital organs, or any vital lead
blood vessels. his family learned of it when they heard from leduc saying, captain holmes is wounded. shot through the neck. this was a town in maryland. holmes had a severe case of what i believe to be survivors guilt. that is a conflict that is in the mind when one says, i am glad i survived, but i do not deserve to have survived when so many other people died. at the end of his life, they arranged for the inaugurated president franklin d roosevelt to come and see homes. holmes. roosevelt asked what advice he could give him, holmes said, follow what the soldier does, form your battalion and fight.
host: here we have the justice who was assigned to write this case. he believes man's destiny is fight. he brings that to a case that is about pro activation. kaine talk about the dynamics? -- can you talk about the dynamics? thomas: this is a man that has really seen the need to raise and mobilize an army and what it has meant to liberty. he has seen the turmoil that can arise in american society twice over. it is extraordinary to think of someone who has been involved in the civil war, in the shaping of the united states as a country, then is a southern statesmen. getting closer to the end of his career, he is around 70. he is a revered figure in the law. one of the great contributions he makes is stepping away from legal formalism to legal realism, which is to say, let's be practical. holmes says life of the law is
experience. he comes with this question and says, i really think this presents a problem for the war effort. host: what about the rest of the court and their patriotic reaction to the war? a quote from the historian peter irons said, the supreme court heated it and enlisted the war. in a symbolic but really real sense, the justices hung up their black robes and dawned the khaki uniforms of american soldiers. were they in the congress all feeling that it was their patriotic duty to support the war? beverly: one of the things we were saying about these being pioneering first amendment cases, almost none of them are decided among half of the people bringing first amendment challenges. most of the people who bring those cases to the supreme court up going to jail. some of them and that trying to skip out of the country to avoid
the wartime -- there wartime sentences. bill, the radical labor leader is given 20 years under the espionage act and he ends up fleeing to russia. there is a sense of the first world war that everyone needs to be mobilized. they understood themselves and they might not have articulated it that way, but they understood themselves as being part of that effort. it is important to remember that it is often set of military generals, the civil war was a living memory for many americans at this moment. -- at this moment, it was a it wasmemory to them -- a vietnam to us about a specific time span. they really are thinking about what social dislocation looks like you're it what the
experience of total war is like. they actually have some very present memory of that. thomas: one thing that is interesting is, in 1919 he starts to get off the train in defense in one of these cases. i think he is coming to the conclusion that the critics of schenck are right and he starts to pull back on the doctrine on how far the government can go in punishing expression like this. beverly: there is suggestion that there is a colleague of his who was somewhat of an influence of this. we are going to learn more about that in a few minutes. host: let's take a call from neil who is in gateway. you are on the air. >> i would like to talk about the credibility of holmes but a
fact that it has been pointed out that he changed his mind in the schenck decision, then reversed himself within a few years. just simply changed his mind. what is that have to say about the supreme court to the value of prior decisions? isn't it just a political organization that is not a viable third branch of the united states parliament of courts? thomas: i think if holmes was available to talk to us, he would not think he radically changed his mind. that is that the court went too far in saying that clear and present danger that the war effort would be undermined. he concluded that you cannot put someone in jail for expressing their views and that you should not have a draft. the question is -- there is this notion of stability. when it comes to the constitutions of the first amendment at the beginning of
the bill of rights, the supreme court said, if we believe we got it wrong in a decision, the only people who can fix that problem are us. congress cannot overturn decisions of the u.s. supreme court. the justices have been willing to come back to earlier cases, as they did with schenck fortysomething years later and say, i think the law and the constitution mean something different than what my predecessor said. host: rob, you are on. >> how are you guys tonight? host: we are great, thanks. >> this is a two-part question. schenck, is that a german last name? host: what is your second question? >> how does freedom of speech -- what schenck began, how does
that apply to today when you get into tabloids -- tabloid media, or texting and bullying? how is free speech protected today? for instance, the polish catholic priest who came out as a homosexual -- this is not an american issue, this is a world issue. the polish catholic priest who said that the catholic church is riddled with homosexual people, humans that cannot marry and are suppressed, so they abuse other people because they are being abused. host: i am going to jump in. taking us a bit far field with international discussion. do you know anything about charles holmes nationality, and does it matter. excuse me charles schenck.
was he german-american? beverly: i believe he may have been of german ancestry. he was a citizen of the united states, but i do not know. i believe he had some german ancestry. thomas: on the question of what does it mean with the first amendment, just to cause briefly, it is another illustration of how it is that we don't have an absolute first amendment. so that you consume someone and the courts will enforce slander. a lot of different ways in which people's reputations can be affected against freedom of speech. there are a lot of debates about free speech over the world and a lot of provisions of human rights, different constitutions, statutes, free speech is protected very differently in different countries at different times. as we saw in the early 20th century. host: next is pat in new jersey. >> based on what i have heard so
far, my question is regarding the subsequent impact of this case. is there any reason to believe that, if contributed to the decision to effectively close our borders in the mid to late 1920's, did this case have impact on that? beverly: that is a great question. one of the important shifts that comes out of the first world war -- before the war you had mass immigration into the united states. it peaks in 1914. in the early 1920's, the united states decides when the gates shuts and keeps them shut for 60 years. there is a quota system put in place. it really favors people from western europe and tries to restrict people from other parts of the world. did the schenck case in
particular disrupted? it might be a direct connection. i think the perception of radicals as being threatening and coming from other parts of the world really matters. one of the questions that comes out of the war years is, what is the difference between being a citizen, and being an immigrant. do non-citizens the same rights as american citizens when it comes to free speech, and when it comes to a host of other rights that are restricted during the war? that is a powerful debate and that is part of the context of schenck. host: hi john. >> i have a quick two-parter. i was wondering when conscription was pushed. if any mention was made tax on american shipping or warships. does this when the conscientious
objector came about? or was that earlier? on the shipping fronts, that was a great issue that pushes the united states into war. you had german submarine warfare that had the most famous incident of the lusitania, which the germans fired on a ship in 1915 that was a british ship, it was carrying many americans. the germans said they were carrying munitions. in fact, it turns out they were carrying munitions. that was hugely controversial. submarine warfare was restricted for a while. in the early 1917's, the germans opened on warfare. that is one of the reasons the united states begins to mobilize for the war. it is one of wilson's stated issues. remind me the second part of the question. host: i cannot, i did not write it down.
i am sorry to that color. -- color. r. calle we will just move on. thomas: it was conscientious objectors. beverly: right. they were very controversial and this moment, but it is the beginning of a conversation about conscientious objectors. we had that conversation in terms of flakers, but who gets to be a conscientious objector? how you make those distinctions is a big issue. host: thanks for saving the day for that color. next is sam in kansas. >> i would like to have you clarify -- the constitution gives the government the right to maintain an army and a navy. there is nothing mentioned in there that gives them the right to in voluntary service in the armed forces. i was drafted in 1968.
the president has the right to mobilize in case of invasion, or rebellion. it does not say an act of war. if congress declares war, how is the draft any different or protected by any of the other rights in the constitution? thomas: the courts concluded that between congresses power to raise an army and the president's power to mobilize, given the historic traditions of conscription, the draft is part of that. it is not slavery in the sense that that has been understood that it would be barred by the 14th and 15th amendment. any of the restrictions that come out of the civil war era, involving slavery, the courts were practical about this and said, we think feeling way you -- think this is the only way
you could raise an army of the size that we need to fight the germans -- they were willing to allow it to happen. beverly: there is also a lot of effort to make conscription seem voluntary. the historians talk about world war i as being a war of course : first -- coworkers and voluntarism. if you can put that phrase together. you needed people to volunteer to be conscripted. they had to show up to their registration board. most of those were staffed by local volunteers, simply because the government had neither legitimacy to enforce this. more importantly, i think they did not have the ability to do it without volunteers on the ground participating. host: oliver holmes was in the
philosophical discussion with a colleague in the courts. about the rights of free speech and what his limitation should be. who was the judge? thomas: that is probably the most famous judge in the united states not to make it onto the supreme court. he was a court of appeals judge. he was intellectually equal to any judge of the era, he did have poignant decisions in response to schenck that it -- that suggested that the standard ought to be more protective of free speech. host: we know that in june, 1918, 7 months before the court heard the schenck case, he and justice holmes had questions about that. we will learn more about that by hearing about this famous conversation and how it may have influenced, or not justice holmes thinking. >> it was the end of the term in june of 1918.
holmes and his wife went to new -- through new york and came across a learned hand who was a district court judge in new york. holmes sat down to talk with him and they begin to discuss the question of the limits of free speech and wartime. he did not persuade holmes and the conversation ended. two days later, from his vacation home in vermont he wrote to holmes and tried to explain what he was trying to say. who says, we must be to how a rent of -- tolerant of opposite